Rights of the Stillborn after Death In Islamic Sharī`ah [Part One]

3/10/2016 12:00:00 AM
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Introduction

All praise is due to Allah; we praise Him, ask Him for help, forgiveness and guidance and seek refuge with Him from the evil in ourselves and from our misdeeds. Whomever Allah guides, none can lead him astray, and whomever Allah misguides, none can guide him. I bear witness that none has the right to be worshipped other than Allah, Who has no partner, and that Mu?ammad is His Slave and Messenger.

The noble Shari`ah has paid great attention to man's interest, and Allah has honored him when alive or dead. He (Exalted be He) says, "And We have certainly honored the children of Adam and carried them on the land and sea and provided for them over much of what We have created, with (definite) preference.” [Al-Isra': 70].

Hence, in Islamic law, the deceased has rights which are due on his living relatives, some of which are supererogatory while others are communal obligations, including washing, shrouding and burying him.[1] Moreover, jurists have dedicated certain sections in their works for the study of such rulings under the title Al-Jana'iz (Funerals), at the end of the chapters on prayers. Yet, the rights of the stillbirth or the aborted fetus have hardly been discussed in their works. Therefore, I found it worthwhile to compile these rulings, and to arrange and list them in this paper.

It is also quite clear that many rulings are determined by identifying the age of the stillbirth and its signs, such as termination of the pregnant woman's waiting period, the ruling on a woman's consequent bleeding, bequeathing, inheritance and the amount of its blood money, and many other similar issues scattered in the books of Islamic jurisprudence. These rulings are beyond the scope of this paper, which only addresses the rights of stillbirths after death on its living relatives.

Jurists mostly depended on indicative signs of whether or not a stillbirth is alive or dead, including the scream made by an infant at its birth, its movement and the like. [2]

Another sign, however, depends on timing, namely the time of breathing life into the soul, bearing in mind that through it the fetus is considered to be discretionally alive.

These signs differ according to jurists of the schools of law, and even among jurists of a single school -especially the Shafi’i school, which has the most detailed and varied opinions regarding the rights of a stillbirth.

Section One: Definition of terms

In the present paper, the rights of a miscarried fetus (that is born dead) are determined according to the definition of the term as-saqt (stillbirth) and the general rulings relating to the dead person in Islamic Shari`ah.

First: Definition of Saqt (Stillbirth)

a. Literal definition: In Arabic, the verb saqata, is used to indicate that the baby is delivered, while asqata means to abort, being derived from the verb saqata, i.e. fell, referring to stillbirth. [3]

The term "abortion" is frequently used instead of "miscarriage" since both coincide in the literal and technical meanings. Thus, ajhadhat and mujhidh are used in reference to the (single) creature that prematurely delivered its infant. It is also said that jahidh is the stillbirth that has been fully created and into which life has been breathed. [4]

b. Technical definition: According to jurists, as-saqt has several definitions, including the following:

- (The fetus) that has not reached its full development. [5]

- The infant that is born dead or that is prematurely born. So, if it is born alive and cries (and then dies), it should be washed and should have the funeral prayer performed over it, bearing in mind that the death is indisputable.[6]

-The infant that is born before its full growth, namely that which does not cry. [7]

Here, it is worth noting that jurists have used the two terms isqat [8] (miscarriage/stillbirth) and ijhadh [9] (abortion). However, both terms almost carry the same meaning, as indicated above.

c. Medical Definition: According to physicians, as-saqt and al-ijhadh bear the same meaning, namely loss of the fetus through the termination of pregnancy before it reaches the state of full growth during which it can be viable outside the uterus. [10] This applies from the initiation of pregnancy until the beginning of the seventh month (of pregnancy), i.e. before 24 weeks. [11]

The Glorious Qur'an has referred to the stages of human creation, as Almighty Allah (Exalted be He) says, "People, if you are in doubt about the Resurrection, then verily, We have created you from dust, then from a nutfah (mixed drops of male and female sexual discharge), then from a clot then from a little lump of flesh, some formed and some unformed, that We may make (it) clear to you. And We cause whom We will to remain in the wombs for an appointed term, then We bring you out as infants, then (give you growth) that you may reach your age of full strength. And among you there is he who dies (young), and among you there is he who is brought back to the most descript old age, so that he knows nothing after having known. And you see the earth barren, but when We send down water on it, it is stirred (to life), it swells and puts forth every lovely kind (of growth)" [Al-Hajj: 5].

Therefore, every stage of the fetus formation has a certain timing that is stated in the ?adith of the most truthful (Prophet Mu?ammad, ?allallahu `alayhi wa-sallam). [12]

The ‘lump of flesh’ formation is considered as one of the most important stages, during which miscarriages normally occur. Almighty Allah (Exalted be He) says, "Allah knows what every female bears, and by how much the wombs fall short (of their time or number) or exceed. Everything with Him is in (due) proportion. All-Knower of the Unseen and the Seen, the Most Great, the Most High." [Ar-Ra`d: 8-9]

It is reported that Ibn `Abbas (ra?iyallahu anhu) [13] interpreted "and by how much the wombs fall short (of their time or number) or exceed" as referring to as-saqt. Mujahid [14] also said that it means hemorrhage that entails emaciation (death) of the infant.

The "lump of flesh" stage is that in which Almighty Allah decrees whether or not the fetus is to be fully formed or not, and therefore He (Glorified and Exalted be He) said, " then from a nutfah, then from a clot, then from a mudghah (little lump of flesh), some formed and some unformed, that We may make clear to you. And We cause whom We will to remain in the wombs for an appointed term, then We bring you out as infants." [Al-Hajj: 5].

The mudghah is a little lump of flesh as small as a morsel, and it is of two types: formed (which is fully created) and unformed (namely the stillbirth before it is fully created). [15]

Second: Definition of Death and the General Rights of a Deceased in the Islamic Shari’ah. [16]

Death is the opposite of life [17] and it occurs when the soul leaves the body. [18] Thus, when a Muslim dies, certain rights for him become incumbent on his living relatives and fellows. [19] These are four rights and they constitute communal obligations. They – being listed in order - run as follows: (1) washing him, (2) enshrouding him, (3) performing funeral prayer over him and (4) burying him. [20] It is worth noting that if the communal obligation is (sufficiently) carried out by some members of the Muslim community, the obligation due on the rest of the community is discharged. Yet, if the whole community neglects it, they are all considered sinful. [21] Therefore, the definition of a communal obligation is that it addresses the whole (community) and that if some perform it, the obligation due on the rest of the community is discharged. [22]

Here, there is no difference between individual and collective obligations except for the way isqat (miscarriage/stillbirth) happened. [23]

As for the general rights of the deceased in the Shari`ah, they run as follows:

First: Washing the Dead Body and its Ruling

1. Definition of Washing the Dead (Ghusl):

a. Literally, ghusl means the complete washing of the entire body. What is meant here are the rights related to a person after his death which are obligatory on his living relatives, bearing in mind that such are moral – not material – rights in the sense that they have nothing to do with that dead person's inheritance, such as settling his debt, fulfilling his will and rights related to the dead person's inheritance. For, such rights lie beyond the scope of the present research.

b. Technically, it means applying pure and lawful water to the whole body in a specific manner. [24] Thus, washing the dead body has a specific manner, though there is not enough room to elaborate on it here. [25]

Some jurists have stipulated that having the niyyah (intention) for washing the deceased (to be valid). [26]

2. The ruling on washing the deceased: It is a communal obligation according to the majority of jurists [27], if carried out by some the obligation due on the rest of the community is discharged. However, if the whole community neglects it, they all become sinful. Besides, ghusl is due as a means of honoring and respecting the deceased, and it is a due right for him. [28] Among the proofs that washing the deceased is an obligation are the following:

a. Umm `Atiyyah (ra?iyallahu anha) narrated, "When the daughter of the Prophet (?allallahu `alayhi wa-sallam) died, he said to us: Wash her three, five, or more times if you see it necessary." [29]

b. The Prophet (?allallahu `alayhi wa-sallam) said regarding the one who was killed by his camel (while he was a mu?rim), "Wash him with water and sidr (lotus jujube) and shroud him in two pieces of cloth; neither perfume him nor cover his head, for Allah will resurrect him on the Day of Resurrection and he will be saying Labbayk". [30]

Second: Definition of Shrouding

1. Definition of Shrouding

a. Literally, shrouding means covering, i.e. covering the dead (body), since it screens the body, while a shroud (Arabic: kafan; plural, akfan) is a well-known cloth used to wrap the (dead) body (for burial). [31]

b. Technically, it means making wrappings over each other and enshrouding the dead body with it [32], bearing in mind that shrouding is achieved with that which screens the body even if it is only one wrapping. [33] However, there is a difference among jurists regarding the number of wrappings for males and females [34] – though it lies beyond the scope of the present research.

2. The ruling on shrouding the deceased: It is a communal obligation according to the unanimous agreement of jurists [35], bearing in mind that such an obligation is due for the sake of Allah (Exalted be He). [36]

Among the proofs of the obligation of shrouding the dead is the Prophet's (?allallahu `alayhi wa-sallam) saying, "and shroud him in two pieces of cloth."

Third: Performing the Prayer over the Deceased

1. Definition of Salah (prayer)

a. Literally, salah means supplication and asking Allah for forgiveness. When attributed to Allah, it means mercy, and when attributed to the angels, it means supplication and asking for forgiveness. Therefore, the act of salah itself is called prayer, since it involves mercy and asking for forgiveness. [37]

b. Technically, it means sayings and actions commenced with takbir (saying: "Allahu Akbar (Allah is the Greatest)") and concluded with taslim (salutation of peace ending the Prayer). [38] However, the funeral (janazah) prayer has a specific manner, as it involves four Takbirs, the

first of which is followed by recitation of Surat Al-Fatihah; the second invokes Allah's Blessings and Peace upon the Prophet (?allallahu `alayhi wa-sallam) in the way stated in the tashahhud; the third contains invocation for the person praying, for his family, for (all) the Muslims and the for dead person; and the fourth with a slight pause. Then one makes taslim once to his right side. [39]

2. The ruling on performing prayer over the deceased, or the funeral prayer: It is a communal obligation, and this ruling is unanimously agreed upon by the majority of jurists. [40] An exception to this is what an-Nawawi reported in al-Majmu` from some Maliki scholars that "(Performing) prayer over the deceased is a Sunnah (supererogatory act of worship following the example of the Prophet)”, though it is a disregarded and rejected opinion. [41] As a proof of the obligation of prayer over the deceased is the Prophet's saying, "Perform prayer over your (dead) fellow".[42] Besides, prayer is performed over the (dead) Muslim child or the stillbirth in accordance with the faith of his parents (belief in Islam) and it follows the best of them in belief. [43] In addition, it is permissible to perform funeral prayer at all times because it is a prayer for a reason, and thus it is permissible to perform it at any time. It is also permissible to perform it in the mosque or in any other place. [44] Here, the reason for its obligation is the death of a Muslim, while its time is the presence of a dead Muslim's funeral. [45] Moreover, funeral prayer has been enacted as a right due to Almighty Allah. [46]

Fourth: Burial of the Dead

1. Definition of burial:

a. Literally, burial means coverage and concealment, while burying the dead means interring it, which is primarily meant by the verb. [47]

2. The ruling on burying the dead: Burying the dead Muslim is one of the collective obligations. [48] Here, Ibn al-Mundhir reported (the scholars') agreement that interring the dead Muslim is an obligation. [49]

An evidence of it being an obligation to bury the dead is the ?adith narrated by Anas (ra?iyallahu anhu) in which he said, "We were (in the funeral procession) of one of the daughters of the Prophet and he was sitting by the side of the grave. I saw his eyes shedding tears. He said, 'Is there anyone among you who did not commit sins last night?' Abu Tal?a replied in the affirmative. Then the Prophet told him to get down in the grave. So he got down in her grave." [50]

References

[1] See Ash-Shar? Al-Mumti`, 5/335.

[2] See Bada'i` As-Sana'i`, 1/302.

[3] See the root saqata in Lisan Al-`Arab.

[4] See the root jahada in Lisan Al-`Arab, also see Mukhtar As-Sihah, 3/1096.

[15] See Jami` Al-Bayan fi Taf?ir Al-Qur'an, 17/89-90, and Al-Jami` li-Ahkam Al-Qur'an, 6/12 and 12/9. The mudghah stage is that between the third to the eighth week of pregnancy; see Al-Janin Al-Mushawwah, 65, bearing in mind that the mudghah is lump of flesh the size of a morsel (plural, mudagh); See the root madagha in Lisan Al-`Arab.

[27] See Al-Muwwafaqat, 1/74-6, and Hashiyat Al-`Attar `Ala Jam` Al-Jawami`, 1/238-9; washing, such as rose mallow, clay and glasswort. It is also referred to as ghsul. Moreover, it is used in reference to the water with which washing is performed.

[28] See the root ghasala in Lisan Al-`Arab and in Al-Qamoos Al-Muhit.